Joint statement by the United Nations Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya and the Special Rapporteur on human rights defenders of the African Commission on Human and People's rights, Reine Alapini-Gansou, at the end of their visit to Tunisia (27 September - 5 October 2012)

Tunisia has undergone tremendous changes since the Revolution which brought down the regime of Ben Ali on 14 January 2011. Everyone we have met with during our visit has emphasized that the country is going through a transition period. The transition has brought a number of serious challenges which the Government and Tunisian society at large are now trying to respond to. Our objective during this visit has been to evaluate the situation of human rights defenders in the country, and the following statement contains our preliminary findings and recommendations. A final report will be presented by the United Nations Special Rapporteur to the Human Rights Council in March 2013. The African Commission Special Rapporteur will present her final report to the session of the African Commission in April 2013.

We would like to commend the Government of Tunisia for its cooperation during our visit. We have had the chance to meet with the Chair of the Rights and Liberties Commission within the National Constituent Assembly, the Minister for Human Rights and Transitional Justice, the Minister of Justice, the Minister of Social Affairs, the Secretary of State of the Ministry of Finance, the Secretary of State in charge of reforms of the Ministry of the Interior, and the Chief of Cabinet at the Ministry of Foreign Affairs. We have met the President of the Higher Committee for Human Rights and Fundamental Freedoms, Tunisia’s national human rights institution. Furthermore, the First President and the Chief Prosecutor of the Court of Cassation has shared their experiences with us. Besides Tunis, we have travelled to El Kef and Sidi Bouzid, and in both places we met the Governor, senior officials from the municipality, and the chiefs of police and the national guard. We have met with a broad range of civil society in Tunis, Jendouba, El Kef and Sidi Bouzid during our visit. We are grateful to the Office of the UN High Commissioner for Human Rights in Tunis for providing logistical support for our visit and making it possible for us to hold these meetings. We would like to thank everyone who took the time to meet with us and shared their valuable and important experiences.

Most people we have met during our visit noted an overall improvement of the situation of human rights defenders compared to before the Revolution. Defenders enjoy a higher degree of freedom of expression, freedom of peaceful assembly and freedom of association than they did during the Ben Ali era. However, the security situation is less predictable than it used to be, and the security of defenders has deteriorated in a number of places as a result of exercising their fundamental rights, including in urban areas outside Tunis.

We are concerned that women human rights defenders, journalists, artists, academics, trade unionists and members of non-governmental organizations have faced physical attacks, murder attempts, harassment and threats since the Revolution in different parts of the country. The perpetrators are in many cases conservative Islamists, commonly known in the region as Salafists. There is a reported lack of responsiveness from the police in these cases, which is underlined by the fact that citizens appear to have little confidence in the police and its ability to protect them from violations.

Freedom of Peaceful AssemblyFreedom of peaceful assembly is an integral part of Tunisian society in the post-Revolution era. The Government should be lauded for largely respecting the right of its citizens to assemble and protest peacefully, although bans on demonstrations have recently been enforced, notably in downtown Tunis. In some instances, protests have turned violent, reportedly in many cases because of counter protests by so-called Salafists. The police has for the greatest part not been able to protect protesters in these cases. Individuals exercising their right to assemble peacefully have been injured and in some instances paid with their lives due to violence perpetrated by counter protesters or excessive use of force by the police and/or the National Guard.

The most serious incident in the post-Revolution era appears to be the commemoration of the Martyrs’ Day in Tunis on 9 April 2012, during which an unidentified number of people, including civilians, were injured, and there are unconfirmed reports of fatalities. While we welcome indications that a committee has reportedly been set up by the Ministry of the Interior to investigate the events of 9 April, we regret that hardly any information is available on its findings so far.

Protests have also continued outside Tunis in the post-Revolution era. In Sidi Bouzid, the birthplace of the Revolution, 300 protests have taken place this year. On average, this constitutes more than one protest per day. Sidi Bouzid and other regions in central and northwest Tunisia continue to face serious challenges related to economic and social rights, amid serious frustrations among ordinary people that their situation has not improved since the Revolution. Considerable investments are reportedly taking place to improve infrastructure and provision of basic services and to combat unemployment.

We are very worried about cases of arbitrary arrests and excessive use of force during demonstrations in the regions which have been brought to our attention. We are also dismayed that a number of allegations of torture of demonstrators while in detention have been presented to us amidst reports detailing poor conditions of detention in prisons.

Freedom of AssociationIn terms of freedom of association, Tunisia has introduced changes since January 2011 which largely bring its legal framework in compliance with international standards. This is a development which we welcome warmly. Many new NGOs have been established after the Revolution. While many NGOs have considerable expertise on the issues they work on, there appears to be a lack of coordination and networking. This is important in order for civil society to work effectively. We have observed that many newly established NGOs lack organizational capacity. We would emphasize the importance of civil society working on the basis of human rights principles, including equality, non-discrimination and the universality of human rights. We are nevertheless concerned that, in areas outside of Tunis, particularly in rural areas, there seems to be a lack of independent civil society.

While the proliferation of civil society organizations is a clear sign that freedom of association is now being facilitated, this right is dependent upon other rights, including the right to equality and non-discrimination. We have heard numerous accounts during our visit of favourable treatment towards NGOs which are seen as ideologically aligned with the current Government.

Drafting of the ConstitutionThe drafting of the Constitution is a true test of the strength and the openness of Tunisia’s public institutions in the post-Revolution era. We are happy to note the National Constituent Assembly’s intention to adopt a consensus-based approach to the drafting of the Constitution, but such good intentions need to be translated into practice. The Constituent Assembly has already embarked on a consultation process in all parts of the country and encouraged submissions by different means of communication. These steps are highly commendable.

We are concerned that differential treatment of civil society is most apparent in consultations around the drafting of the new Constitution. The drafting process is at the centre of the historical juncture at which Tunisia currently finds itself, and it is of utmost importance that this be an open and transparent process in which all parts of Tunisian society have a sense of ownership. However, the process appears to be polarizing civil society in the country, as there is reportedly not equal treatment of those providing inputs. We would like to recall that under the UN Declaration on Human Rights Defenders, individuals and associations acting to defend human rights have the right to participate in public affairs without discrimination.

It remains unclear to us what the Members of the National Constituent Assembly intend to do with the submissions received. This is in part due to the lack of specificity in the mandate of the Constituent Assembly. For example, it is not clearly stipulated how the Constitution should be drafted and whose opinions should be taken into account. NGOs were reportedly told during a consultation meeting a few weeks ago that their inputs might not be considered, let alone taken aboard, by the Constituent Assembly. We are concerned that such statements go counter to the consensus-based approach which the Assembly has endorsed explicitly. The fact that a number of NGOs have recently chosen to boycott the process points towards a trend which should be of utmost concern to the Constituent Assembly.

It has also come to our attention that NGOs monitoring the drafting of the Constitution face considerable constraints in doing so. Minutes of the meetings of the different Commissions within the National Constituent Assembly are not uploaded on the website of the Assembly; it is difficult to get hold of voting reports, thematic reports, submissions considered and other information that should be publically available in order to ensure transparency. Reasons cited for not publishing more information include “lack of capacity” and “resource constraints”. Access to such information would alleviate some of the frustrations expressed by the authorities in relation to what they characterized as “sensationalist” and “speculative” media.

The draft Constitution has not yet been made public, but a preliminary draft has been circulated. In this connection, we would like to point out certain elements and trends which have been brought to our attention during our visit and that could impact on the situation of human rights defenders:

It seems that Tunisia’s obligations under international law are conditioned by the fact that respecting them is compulsory as long as they do not contradict the Constitution. We recommend that the Constitution stipulate that all domestic legislation needs to be in compliance with international standards. Human rights defenders work by definition to ensure increased respect for international human rights standards hence their role could be seriously undermined if the current provisions remain the same.

The current draft deals with freedom of religion and belief, while criminalizing all attacks on “the sacred”. However, the text does not clearly define what constitutes “the sacred”, leaving considerable room for individual interpretation. It risks being arbitrarily applied, which will likely lead to self-censorship among human rights defenders, including journalists, artists and academics.

There has been much debate around the references to the complementarity of the roles of women and men since the publication of the current draft on 8 August 2012. While the drafters themselves might not see a contradiction between the language regarding complementarity and the notion of equality, which is endorsed in other parts of the Constitution for all Tunisian citizens, they should be concerned that many Tunisians fear this will result in less recognition and, thereby, less respect for women’s human rights. We are concerned that endorsing this concept in the Constitution will create ambiguity around women’s equality to men. In turn, this could be used to justify attacks and harassment against women human rights defenders by segments of Tunisian society which do not think it is appropriate for women to actively defend human rights. Also, language around complementarity between the roles of women and men does not add any legal guarantees. In light of these observations, we recommend all language relating to complementarity be removed from the Constitution.

The Constitution should have general provisions guaranteeing values and rights, including equality, non-discrimination, dignity, and it should endorse the universality, interdependence and indivisibility of human rights.

Freedom of ExpressionWith regard to freedom of expression, we have noted that human rights defenders enjoy a much higher degree of respect for this right compared to before the Revolution. However, we have heard a number of concerns that freedom of expression is in the process of being restrained. We have observed a number of disputes between the Government and the press, the most serious of which seems to be the row over the media outlet Dar Assabah, where the Government has appointed a CEO whom the employees do not believe is qualified to serve his functions. This has resulted in various protests by the employees, including sit-ins and an on-going hunger strike by some staff members.

It has become evident during our visit that the media sector needs considerable reform in order to operate effectively in the post-Revolution context, and we believe Decrees 115 and 116 will ensure some favourable developments in this regard. A regulatory body on audio-visual information has been in the pipelines for some time. A panel was established by the Government to provide recommendations on reforms, which have reportedly not been followed up on.

Access to public information is another issue of concern. Decree 41, which is currently regulating this practice, features a number of restrictions which are not allowed under international human rights law. Article 16 of the Decree states that the Government can refuse the publication of any document deemed to be confidential. This is an overly broad provision which leaves considerable room for interpretation, and which could be used to unduly limit the right to freedom of expression.

Tunisia has a long tradition of both artistic and academic freedoms, and we have noted that those exercising these freedoms in defence of human rights have come under attack from different groups of society. The arts and academia are fields which have traditionally been used to promote human rights issues hence this is very disconcerting to us. Violations reported include harassment and attacks on individual artists, academics and NGO workers engaged in promotion of cultural rights; judicial harassment for cultural expressions and film screenings; and disruption of public cultural events.

The Government needs to provide protection to actors in both the cultural and academic sectors in order to preserve the right of human rights defenders in these fields to freedom of opinion and expression. The cases referred to us again show the urgent need for far more clearly defined legislation pertaining to blasphemy.

Independence of the JudiciaryWe have received disconcerting information indicating a lack of independence and impartiality of the judiciary which undermines both the effectiveness of the administration of justice and the potential role of judges as human rights defenders. The lack of a regulatory body with the powers to appoint and discipline judges is a severe shortcoming for the independence of judiciary. On the other hand, judges and their associations have participated actively in the drafting of the Constitution. We commend the General Legislation Commission of the National Constituent Assembly for its efforts in this regard. Still, the challenges facing the judiciary are considerable, and the Government needs to engage in a consultative process with judges to resolve the issues and ensure appointments are made on a non-discriminatory basis.

National Human Rights InstitutionWe regret that during our visit we received reports indicating that the Higher Council for Human Rights and Fundamental Freedoms (CSDHLF) is unable to effectively undertake its crucial functions as Tunisia’s national human rights institution. The creation of the Ministry of Human Rights and Transitional Justice is a positive development to fulfil the State responsibility to monitor and protect human rights. However, we would emphasize that the institutional responsibility for monitoring human rights should also fall within the scope of an entity independent of the Government. This institutional weakness generates a lack of credibility in the national human rights protection system. The Government has assured us that a new law is being finalized which will enshrine CSDHLF’s mandate in law.

Effective Remedy for Those Who Stood Up for Human Rights during the RevolutionFinally, we wish to pay tribute to those who paid with their lives and those who were wounded during the Revolution for having defended human rights and human dignity. During our visit, we have met with some of the victims, as well as family members who lost their loved ones. Many of these individuals live in precarious circumstances.

To date, most of them have not received an effective remedy from the Government. In this connection, we are concerned to have learned that most of the victims and their families have not obtained effective remedy, neither fair nor adequate compensation, including full means of medical rehabilitation.

RecommendationsWe would like to put forth the following, preliminary recommendations. Final recommendations will appear in our respective reports to the UN Human Rights Council and the African Commission on Human and Peoples’ Rights.

To the Government:

The Government should clearly define its policies regarding protection of human rights and communicate clearly the measures undertaken to this end to the population.

Government should publically recognize the essential role played by human rights defenders, in particular in this transitional period and ensure their effective protection, in accordance with article 12 of the Declaration on Human Rights Defenders.

Impunity for human rights violations need to be addressed as a matter of priority. The Government should ensure prompt and impartial investigations, and perpetrators should be promptly brought to justice.

The Ministry of the Interior need to enact reforms and improve both responsiveness and accountability of the police. We suggest the Government enact such measures without delay, especially in urban areas. Prompt and impartial investigations into alleged attacks on human rights defenders should be launched as a matter of priority.

Allegations of excessive use of force and arbitrary arrests during demonstrations need to be investigated in all parts of the country. The events in Tunis on 9 April 2012 need to be investigated in a prompt and impartial manner. The authorities should make all efforts to ensure that the perpetrators are prosecuted without any further delay.

Local authorities and the Ministry of the Interior should ensure allegations of torture while in detention are investigated urgently and that perpetrators are held accountable.

In accordance with recommendations made by the UN Special Rapporteur on torture following his visit to Tunisia last year, the Government should make serious efforts at eliminating torture during arrests, detention and in prisons. Perpetrators should be held to account. The establishment a National Preventive Mechanism, which is currently being developed, should be in compliance with relevant international standards.

The Government should ensure that the National Constituent Assembly has enough financial and human resources to make all relevant information about the drafting of the Constitution available to the public in a timely and efficient manner.

Women human rights defenders should be allowed to work in a conducive environment and protected by the Government if harassed or attacked.

As the Ministry responsible for mediation of labour disputes, including in the media sector, the Ministry of Social Affairs should find a solution to the Government’s conflict with Dar Assabah as soon as possible with the ultimate aim of ensuring the independence of the media outlet.

In order to ensure the press is able to operate freely, Decrees 115 and 116 should be implemented by the Government without any further delay in order to bring reforms of the media sector forward and ensure increased respect for the right to freedom of expression.

The Government should establish a regulatory body for audio-visual communications without further delay and ensure it has broad representation from media outlets and civil society, and that it is independent of the Government. We believe this will go a long way to prevent the disputes and polemics currently seen between the Government and media outlets in the country.

Regulations relating to access to information, notably Decree 41, should be revised in order to make sure it is in compliance with international standards.

The Government needs to engage in a consultative process with judges to resolve the issues and ensure appointments of judges are made on a non-discriminatory basis. Reforms to ensure the independence of the judiciary should be developed and implemented in a timely manner.

The Government should urgently establish a regulatory body for appointment and discipline of judges which is independent of the Government in order to strengthen the independence and credibility of the judiciary.

The Government should ensure CSDHLF’s mandate, as the national human rights institution, is in compliance with the Paris Principles, including adequate staffing and resources, complete independence from the Government, and a consultation process with relevant civil society organizations from different fields pertaining to the appointment of members.

The process of providing effective remedy to the families of those killed during the Revolution and to individuals who were wounded should be expedited as a matter of priority. Adequate compensation needs to be provided on a non-discriminatory basis, including access to appropriate medical and rehabilitation services to the individuals and families.

Violations committed during the Revolution need to be investigated in a prompt and impartial manner, and the perpetrators need to be brought to justice while respecting international standards of due process.

The Government should ensure respect for economic and social rights through investments in relevant sectors. It should assist NGOs working on issues of women and children to this end, notably in rural areas and urban areas outside of Tunis.

To the National Constituent Assembly:

The National Constituent Assembly should develop a clear strategy for how it intends to handle submissions from the public in the drafting process regarding the new Constitution. The strategy should be based on transparent and consistently applied criteria.

The National Constituent Assembly should inform the public proactively about the drafting process in order to ensure transparency and a sense of ownership among the population. All relevant documentation should be made available on the Assembly’s website.

The Constitution should have general provisions guaranteeing values and rights, including equality, non-discrimination, dignity, as well as the universality, interdependence and indivisibility of human rights.

The Constitution should state that national legislation should be in compliance with international standards.

Criminalization of attacks on “the sacred” should be removed from the Constitution in light of the fact that what constitutes “the sacred” is not defined and there does not appear to be agreement on what this would represent.

References to the complementarity of the roles of women and men in the Constitution should be removed as this risks creating ambiguity about the status of women in Tunisia and the equality they have enjoyed for many years in accordance with international human rights law.

To human rights defenders:

Human rights defenders should improve their capacity and work together in networks. In order for civil society to be effective, it needs to work in unison and according to human rights principles.

Human rights defenders should reach out to rural areas and urban areas outside of Tunis.

Civil society needs to undertake training in human rights and the use of regional and international mechanisms.

To the international community:

The international community needs to continue to support Tunisia in the democratization process in order to avoid a fall-back of the Revolution, especially in the areas of human rights; transitional justice; reform and strengthening of the police so they can provide security and protection to citizens; judicial reform; and to strengthen the media.

The international community must provide support to strengthen civil society, and in particular those outside of Tunis and in rural areas.

To all stakeholders:

All stakeholders should familiarize themselves with the provisions of the Declaration on Human Rights Defenders.

Efforts should be continued to raise civic awareness among the general public, and the spirit of dialogue and cooperation in society fostered.

All protests and assemblies should be peaceful. Citizens should not perpetrate violence and need to act within the provisions of the law while carrying out their activities.

Efforts should be made by all stakeholders to ensure a culture of respect for human rights and upholding of the rule of law.

As mentioned, these observations and recommendations will form the basis for the reports we will present to the UN Human Rights Council and the African Commission on Human and Peoples’ Rights.